SCOTUS Gets Down & Dirty with Indecency!

The Supreme Court just agreed to hear the FCC’s appeal on the indecency case. This case involves whether the FCC acted correctly when it changed previous precedent and held that even a “fleeting utterance” of certain words (in this case, the “F-word”) can qualify as “indecent.” Previously, the FCC had a rule that it would take the entire context of the use of an obscenity into account, and that a mere “fleeting utterance” in the context of live television (especially of a newsworthy event) would not constitute indecency.

What’s at stake? See below . . .

A quick review here. Back in 2002, Cher used the f-word during a live broadcast the 2002 Billboard Music Awards Show. Nichole Ricthie did the same thing for the “s-word” in 2003. (What is it about being live on Fox that makes people want to swear?) By the time the full FCC Commission heard the case, we had the 2004 NFL “wardrobe malfunction” and Kevin Martin had become chair. The FCC therefore took the opportunity to announce a change in policy. From now on, even “fleeting utterances” during live broadcasts could be considered obscene and trigger massive fines. The broadcasters appealed to the Second Circuit. My employer, Media Access Project, intervened on the side of the broadcasters representing performing artists. You can read my original sum up over here.

Last year, the Second Circuit reversed the FCC. Technically, the Second Circuit said it thought the FCC acted arbitrarily and capriciously (which is lawyer talk for “stupidly”) and therefore sent it back for a do-over. But the court made it clear along the way that (a) it hated, hated, HATED the fact that the Supreme Court had found the indecency provision of the Communications Act constitutional and therefore, (b) the FCC was never going to be able to “rationally” justify the new rule on fleeting utterances if the Second Circuit panel had anything to say about it.

This explains, at least in part, why the Supreme Court took what should have been a garden variety administrative law case. Especially with similar issues pending in the 3rd Circuit as a result of the 2004 Superbowl incident, one might have expected the Supremes to decline and see if the circuits disagreed over the analysis. But the Solicitor General (on behalf of the FCC) argued that the Court needed to review this now, or the agency would be unable to manage its indecency authority in light of the 2nd Circuit’s strong opinion — which amounted to a de facto reversal of the Supreme Court’s previous holding in this area.

Anyway, for whatever reason, the Supreme’s took the case. We will pass over the irony that a Democratic Administration may end up stuck defending this and pass on to the nature of this can of worms the SCOTUS review opens.

Whats At Stake?

Is the Indecency Ruling Still Constitutional? First up, now that we are back in Supreme Court land, we can revisit the entire question of whether the broadcast indecency rules remain constitutional. The Pacifica case rested on the “uniquely pervasive” nature of radio and television broadcasting and the inability of parents to adequately protect their children from indecent broadcasts as a result. Because this stuff is everywhere, and indecent stuff can come on with no warning, the FCC can regulate it for the explicit purpose of protecting children. But because of the tension between protecting children from speech which is merely indecent (as opposed to obscene) and allowing adults the freedom guaranteed under the First Amendment to say “boobies” between 6 a.m. and 10 p.m., the FCC needs to be circumspect in how it regulates indecency.

There is a lot of scholarly opinion out there which hates this. Lets start with the hardcore First Amendment crew that think any restriction enforced by the government on what people say anywhere is crap. Now move on to the question of whether TV and radio are really so “ubiquitous” that it justifies government intervention (a doctrine not found elsewhere in First Amendment jurisprudence) and whether technological means such as “v-chip” have rediced the need for government intervention. Finally, as argued by the Second Circuit in the guise of pretending not to pass judgment on the Constitutional question, how much does this really protect kids in an era of internet access and when most homes have “indecent” cable and satellite programming indistinguishable from broadcast. Does it make sense to regulate the content on channels 2-68 but not above?

In response, those that defend indecency argue that broadcast is still ubiquitous and the fact that the government’s power to create a “safe haven” for those who eschew cable and satellite (or for parents that prohibit such programming to their children) is limited does not make it useless or any less constitutionally valid. Alternatively, perhaps we ought to find cable and satellite equally “ubiquitous” and regulate them, rather than deregulate cable.

Well, the Supremes will now get to sort that out. Before they get to the question of administrative deference, they will need to resolve whether Pacifica (or some other justification for indecency) remains valid. And, while they can limit themselves to broadcast, they don’t have to. But even if they do, the language they use will provide guidance for those interested in regulating cable or satellite.

What About Red Lion And The “Scarcity Rationale”? Technically, indecency does not have anything to do with the “scarcity rationale” — the idea that because the government rations access to the airwaves, it has an obligation to protect the rights of those not given licenses by requiring licensees to promote diversity of views in broadcast content. See Red Lion Broadcasting. But a number of folks have advanced the Red Lion scarcity doctrine as an alternate rationale for regulation. Specifically, broadcasters agree to limit their speech as part of a quid pro quo for a scarce broadcast license.

As lost of folks hate the whole scarcity doctrine idea as a general matter, and may ask the Supreme Court to eliminate it entirely under the guise of examining the indecency rules. Alternatively, the FCC or others may offer scarcity as an alternate grounds for affirming indecency jurisdiction. I’m hoping the Court will let sleeping dogs lie and just ignore it. But it could come up.

What are the requirements when rulemaking by adjudication? Normally, this would be of interest only to us admin law junkies. But because of the fuss around the FCC’s authority to fine Comcast in our net neutrality complaint, this becomes more widely interesting. These days, most agencies do their rulemaking by “informal” setting of general rules rather than “formal” adjudications. If the Court upholds the FCC’s general authority on indecency, it will still need to provide guidance on how the agency can reverse course through an adjudication by either affirming or remanding the FCC’s determination.

I should say I have no clue how the Court will come out. A “conservative” court is not automatically one that believes in indecency enforcement. The strict constructionists generally do not like any First Amendment restraints. But they also dislike naughty words. Should be fun. And, of course, obscenely busy. Well,, perhaps just indecently busy.